Executive Summary: Key Legal and Evidentiary Issues

• Canada sought to enter memoranda of fact and law and lists of evidence from a prior 2014 Summary Judgment as exhibits at the current trial, which the Court denied.

• Admissibility of prior court records under section 23 of the Canada Evidence Act was at issue, with the Defendant failing to comply with its requirements.

• Prejudice to the Plaintiffs was a central concern, as they had already closed their case when the Defendant brought this evidentiary motion.

• Res judicata, issue estoppel, and cause of action estoppel were raised by Canada as defences, though the Court declined to divine what was in the prior judge's mind.

• Whether the Plaintiffs should be compelled to confirm or justify changes to their pre-trial statement of issues was contested, particularly regarding cultural loss and damages claims.

• No authority was found requiring a party to clarify divergences from pre-trial memoranda before closing submissions at or near the conclusion of a trial.

The background of the dispute

The Louis Bull Band (also referred to as Louis Bull First Nation), represented by Chief Simon Threefingers, Jonathan Bull, Joseph Deschamps, Clyde Roasting, Russell Threefingers, Harvey Roasting, Elaine Roasting, Telly Raine, and Irvin Bull, the Chief and Councillors suing in their representative capacity on behalf of all the members of the Louis Bull Band, commenced proceedings against His Majesty the King in Right of Canada in Federal Court under Docket T-2439-97. The trial began on September 2, 2025, before the Honourable Mr. Justice Favel. The Plaintiffs closed their case, and the Defendant tentatively closed its case on February 5, 2026, pending the resolution of two motions before the Court, including the present one.

The Defendant's two-part motion

The Defendant brought a motion seeking two orders pursuant to Rules 3(a), 53(1) and (2), 258(3)(d) and 275 of the Federal Courts Rules, SOR/98-106. First, Canada asked that the parties' memoranda of fact and law and the lists of evidence before the Court in Louis Bull First Nation v Canada, 2015 FC 1066 (the "2014 Summary Judgment") be entered as exhibits at trial. Second, Canada sought an order compelling the Plaintiffs to confirm their statement of issues for determination at trial within two days, and providing justification for any changes.

Canada's arguments in support of its motion

Canada argued that it had pleaded in its Further Amended Statement of Defence, including at paragraphs 5–6, 48–49, 71 and 74, that some of the Plaintiffs' claims are barred by estoppel, laches and limitations, and that Canada specifically pleads issue estoppel, cause of action estoppel and res judicata. The Defendant maintained that the requested documents from the 2014 Summary Judgment are relevant to determine the issues previously advanced by the parties in the pleadings, particularly the issues of limitations and estoppel. Canada contended the memoranda of fact and law provide context to the 2014 Summary Judgment, and the lists of evidence provide a record of evidence before the Court in that prior proceeding. The Defendant stated the documents are not proffered for their truth, but rather to determine what was and was not before the Court in the 2014 Summary Judgment. Canada further cited Petrelli v Lindell Beach Holiday Resort Ltd, 2011 BCCA 367, arguing that the Court is permitted to review its own records from the 2014 Summary Judgment, even if those records have not been formally entered into evidence, and that the Court can look behind a formal order and reasons for judgment when determining if that order already decided an issue. On the issue of the pre-trial statement of issues, Canada argued that the Plaintiffs' statement of issues for trial does not mention cultural loss and related damages, but they have called expert witness Robin Gregory at trial who testified about cultural damages. Canada also noted that changes to the Plaintiffs' pleadings since 2019 are not reflected in the pre-trial memorandum, and that Canada relied on the Plaintiffs' pre-trial memorandum to structure its litigation strategy and to take instructions. As a matter of fairness, the Defendant submitted, the Plaintiffs should be ordered to confirm their statement of issues, and if that statement has changed from before the trial and there is no justification for the change, the Plaintiffs should be held to their pre-trial statement of issues.

The Plaintiffs' response

The Plaintiffs opposed both requests, arguing the Defendant has cited no legal authority justifying its proposed orders and that Rules 3(a), 53(1)–(2), 258(3)(d) and 275 do not permit the Defendant's proposed orders. The Plaintiffs highlighted that the Defendant has not complied with Rule 286, which requires them to bring this evidentiary motion prior to trial. The Plaintiffs pointed out that the Defendant has missed its opportunity to introduce the memoranda from the 2014 Summary Judgment proceeding into evidence at trial, as set out in the Court's Order in Louis Bull First Nation v Canada, 2025 FC 1553 (Louis Bull 2025) at paragraphs 102–103, and that the Defendant should have included the 2014 Summary Judgment memoranda and lists of evidence in its request that is the subject of the Louis Bull 2025 decision, not now after the Plaintiffs have closed their case. The Plaintiffs also noted that in the Louis Bull 2025 decision, the Court said that it should not weigh and balance what the 2014 Summary Judgment judge had in their mind. Admitting the Defendant's proposed evidence now would prejudice the Plaintiffs because they have already closed their case, and they would have prosecuted their case differently if they knew the memoranda would become evidence at trial. The Plaintiffs further argued it is inappropriate for the Court to look at the written submissions from the 2014 Summary Judgment when it can review the order and reasons, and that the Defendant has not raised the issue of res judicata or issue estoppel in its pleadings and cannot introduce those submissions through the memoranda. On the cultural loss issue, the Plaintiffs noted that the parties' joint table of issues, which Justice Gleeson ordered them to provide to the Court no later than August 19, 2025, includes the cultural issues. Additionally, the pre-trial memoranda are limited to 30 pages, and it is understandable for the document to not canvas every issue. The Plaintiffs maintained their consistent position that they will be relying on their pleadings, and argued the Defendant has not been surprised because they consented to the Plaintiffs' amended pleadings in 2019 and even filed an amended statement of defence.

The Court's analysis on the evidentiary motion

The Court considered that a party may tender court records as evidence pursuant to section 23 of the Canada Evidence Act, RSC 1985, c C-5, but noted the Defendant has not adduced the memoranda of fact and law and the lists of evidence used in the 2014 Summary Judgment in this motion in compliance with section 23 of the CEA. The Court acknowledged that under Petrelli at paragraphs 36 and 38, a court may view its own records, and if a court does so, it should notify the parties, but declined to exercise that power. Justice Favel agreed with the Plaintiffs that the proper opportunity for the Defendant to attempt to adduce the 2014 Summary Judgment memoranda of fact and law was during the Louis Bull 2025 motion. A similar request for materials from the 2014 Summary Judgment, specifically certain affidavits and cross-examinations on the affidavits, was made by the Defendant but was dismissed on September 22, 2025 (Louis Bull 2025 at paragraphs 95–97, 102). Allowing the Defendant to adduce this material now is prejudicial to the Plaintiffs, who have since closed their case. The Court also considered Apotex Inc v Bristol-Myers Squibb Company, 2011 FCA 34, but distinguished it on the basis that it is a case dealing with civil procedure in the pre-trial context and not within the context of a trial that is nearing its conclusion. The Court reaffirmed its earlier determination that it is not going to attempt to divine what was in the 2014 Summary Judgment judge's mind (Louis Bull 2025 at paragraph 83), and found that admitting the proposed evidence would be akin to attempting to divine what was in that judge's mind. However, the parties are permitted to make arguments relating to limitations, estoppel and res judicata in their closing submissions at trial, presently scheduled from June 1 to June 10, 2026, and are also permitted to make submissions on their positions regarding the scope and meaning of the 2014 Summary Judgment Order and Reasons, including what "brokering the surrender" means.

The Court's analysis on the statement of issues motion

On the second part of the motion, the Court acknowledged that pursuant to Rule 258(3)(d) and Apotex, there is no place for strategic non-disclosure or purposeful non-clarification. However, Justice Favel found there is no authority that requires a party, prior to closing submissions at or near the conclusion of a trial, to clarify and provide its reasons for any potential divergence from the statement of issues identified in its pre-trial memoranda. The Court was not persuaded that cultural loss issues in this case have caught the Defendant by surprise, as the Defendant was aware of the Plaintiffs' expert report and tendered its own expert in response to the Plaintiffs' expert. In closing submissions, the parties are entitled to rely on the evidence adduced at trial to determine whether or not any or all claims set out in their pleadings are made out, and if a party's claim has shifted, the parties are permitted to address that, and other issues arising from the trial, in their closing submissions.

The ruling and outcome

Justice Paul Favel dismissed the Defendant's motion in its entirety on February 20, 2026. Both the request to enter 2014 Summary Judgment materials as evidence and the request to compel the Plaintiffs to confirm their statement of issues were denied. The Plaintiffs, the Louis Bull Band, were the successful party and were awarded costs in the cause. No specific monetary amount was determined in this ruling, as the decision concerned an interlocutory evidentiary and procedural motion rather than a final determination on the merits of the case.